May 25, 2018

Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State


Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State
Police Benevolent Assn. of N.Y., Inc. v State of New York, 2018 NY Slip Op 03586, Appellate Division, Third Department

This decision provides an opportunity to consider the relevant provisions of law applicable with respect to the reemployment of individuals receiving a retirement allowance from a public retirement system of New York State.*

§150 of the Civil Service Law requires the suspension of the pension and annuity [retirement allowance] of a retired state or municipal employee in the event such an individuals is employed in a public service position of the State or a political subdivision of the State and making a certain salary while continuing to receive his or her pension during the public employment** except as otherwise permitted by §§100, 211, 212, 213, 214 of the Retirement and Social Security Law, §503 of the Education Law and "as now provided by any local law or charter."

§211 further requires that a retired state or municipal employee to be employed in a public service position making in excess of a certain salary while continuing to receive his or her pension obtain the approval of certain commissions or public officers, to be requested by the appointing authority, and, where required, a "waiver" in order to avoid any diminution of his or her retirement allowance.

The position of Chief of University Police at the State University of New York, College at Brockport became vacant and two individuals applied for the position and met all of the required qualifications. Edward Giblin, who was retired from public service and receiving a retirement allowance, was offered and accepted the position.

The Police Benevolent Association of New York, Inc., [Petitioners] commenced this CPLR Article 78 proceeding alleging that the State University violated Retirement and Social Security Law §211 by hiring Giblin and granting him a waiver despite the availability of qualified, nonretired applicants. Petitioners sought an order compelling State University to rescind the waiver issued to Giblin. Supreme Court granted State University's motion to dismiss the petition based on lack of standing and Petitioners appealed.

The Appellate Division dismissed the appeal as moot, explaining "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

According to the decision, "Giblin retired from the position in 2017, and the waiver is therefore no longer in effect." Accordingly, said the court, "Petitioners cannot receive the relief requested in the petition, rendering the matter moot."

However, noted the court, there is an exception to the mootness doctrine permitting judicial review. In the event the issues are substantial or novel, likely to recur either between the parties or between other members of the public, and involve "a phenomenon typically evading review," such judicial review is warranted. Here, however, the Appellate Division did not find that the exception applies in this instance.

* New York State's Optional Retirement Programs authorized by Article 3, Part 5, Article 8-B and Article 125-A of the Education Law are not public retirement systems as neither the State nor a political subdivision of the State are liable for payment of benefits nor a party to any contract purchased in whole or in part with employer contributions made under the optional retirement program established and administered pursuant to these articles and any benefits shall be paid to "electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

** This limitation does not apply to individuals receiving a retirement allowance serving on jury duty or employed by the office of inspector of election as a poll clerk or ballot clerk pursuant to the Election Law, or as a notary public or commissioner of deeds, or to a retiree who has been elected to public office nor does it apply to individuals after the calendar year in which any such retired person attains age 65.

The decision is posted on the Internet at:

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